North Carolina

Ibid., 2746, 2747. Phrases such as “all liberties, franchises and privileges” appeared frequently in colonial charters. See pp. 22–30. Presumably, it afforded the colonists the protections of the English common law, which North Carolina incorporated by statute in 1715.

Ganyard, “North Carolina During the American Revolution,” 442–443; Hugh Talmage Lefler and Albert Ray Newsome, The History of a Southern State: North Carolina, 3rd ed. (Chapel Hill: University of North Carolina Press, 1973), 59. “Dissenters secured such a substantial foothold in polity and society at such an early date that their rights could not be easily dismissed.” William S. Price, Jr., “‘There Ought to Be a Bill of Rights’: North Carolina Enters a New Nation,” in The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties, ed. Patrick T. Conley and John P. Kaminski (Madison, WI: Madison House, 1992), 427. In 1705 Quakers and Presbyterians united to secure an Anglican governor’s removal because he supported an act that required all assembly members to take an oath affirming their membership in the Church of England. Lefler and Newsome, History of a Southern State, 60. The Quakers continued to actively oppose and seek the removal of every subsequent governor that enforced the oath requirement, even to the point of supporting an armed rebellion in 1711–1712. Ibid., 60–61; Price, “There Ought to Be a Bill of Rights,” 426. The Quakers were finally appeased in 1715 when the legislature passed an “Act for Liberty of Conscience” giving them the right of affirmation and providing legal protection for all dissenters. Lefler and Newsome, History of a Southern State, 67. The influence and growth of dissenting sects continued throughout the eighteenth century. Their toleration was never again jeopardized, and ultimately led to the disestablishment of the Anglican Church in North Carolina’s 1776 constitution. Price, “There Ought to Be a Bill of Rights,” 427; Charles Lee Raper, North Carolina, a Study in English Colonial Government (New York: Macmillan, 1904), 14.

The Fundamental Constitutions of Carolina (1669), in Thorpe, Constitutions, 5:2772. John Locke played a role in the creation of the 1669 document, although the nature of his role is disputed. That constitution explicitly supported hereditary nobility and slavery, while Locke’s Two Treatises of Government (1690) argued against the very root of slavery: inherited status, which derived from the same set of ordering ideas and commitments as the monarchy—the divine and hereditary rights of kings. Some scholars have accused Locke of hypocrisy; others find justification for slavery in his own writings. Professor Holly Brewer concludes:

Locke was a secretary – he drafted a legal document as a lawyer drafts a will. He composed it for the eight men who owned the Carolinas (given to them as a reward by Charles II). These men desired ‘that the government of this province may be made most agreeable to the monarchy under which we live’. They sought to ‘avoid erecting a numerous democracy’. The principles it espoused – including hereditary nobility and slavery – both predated Locke’s involvement, and reflected the ideals of the owners. It is a deep error, therefore, to contend that Locke’s role in the Carolina constitutions should guide interpretation of his later work, much less liberalism.

Holly Brewer, “John Locke Took Part in Administering the Slave-Owning Colonies: Does That Make Him, and Liberalism Itself, Hypocritical?” accessed February 9, 2019, https://​aeon.​co/​essays/​does-lockes-entanglement-with-slavery-undermine-his-philosophy. For the argument that Locke was more deeply implicated in the defense of slavery, see James Farr, “Locke, Natural Law, and New World Slavery,” Political Theory 36, no. 4 (August 2008): 495–522.

Gerber, “Origins of an Independent Judiciary,” 1781–1782 n. 51.

Gerber, “Origins of an Independent Judiciary,” 1783.

Ibid., 231.

“Carolina Under the Lords Proprietors’ Rule: Lords Proprietors Commission to Governor Philip Ludwell,” accessed February 2, 2019, http://​www.​carolana.​com/​Carolina/​Governors/​pludwell_​instructions.​html. See Saunders, Colonial Records, xxv–xxvi.

An Act for the More Effectual Observing of the Queen’s Peace, and Establishing a Good and Lasting Foundation of Government in North Carolina (1715), Ch. 31, in The State Records of North Carolina, ed. Walter Clark (Goldsboro, NC: Nash Brothers, 1904), 23:38. The common law remained in force after separation from England via state statute in 1778. An Act to Enforce Such Parts of the Statute and Common Laws as Have Been Heretofore in Force and Use Here; and the Acts of Assembly Made and Passed when this Territory was under the Government of the Late Proprietors and the Crown of Great Britain, and for Reviving the Several Acts therein Mentioned (1778), Ch. 5, in Clark, State Records, 24:162.

Lefler and Newsome, History of a Southern State, 133; Raper, North Carolina, 31.

“Proclamation of Governor Martin, March 6, 1775,” in Saunders, Colonial Records, 9:1145–1146; “Proclamation of Governor Martin, April 3, 1775,” in Saunders, Colonial Records, 9:1177–1178.

“Legislative Journals, April 6, 1775,” in Saunders, Colonial Records, 9:1198–1200; “Journals of the Second Provincial Congress, April 7, 1775,” in Saunders, Colonial Records, 9:1185.

Ganyard, Emergence of North Carolina’s Revolutionary State Government, 60; Jeffrey J. Crow, A Chronicle of North Carolina During the American Revolution, 1763–1789 (Raleigh: North Carolina Division of Archives and History, 1975), 28.

Frank Nash, “The North Carolina Constitution of 1776 and its Makers,” The James Sprunt Historical Publications 11, no. 2 (1912): 11–12; Fletcher M. Green, Constitutional Development in the South Atlantic States, 1776–1860: A Study in the Evolution of Democracy (Chapel Hill: University of North Carolina Press, 1930), 49.

Ibid., 221.

Ibid., 954, 967, 973–974.

John V. Orth, “Fundamental Principles in North Carolina Constitutional History,” North Carolina Law Review 69, no. 5 (1991): 1358. William Hooper, North Carolina’s delegate to the Continental Congress, sent a letter to the convention with copies of other states’ newly adopted constitutions. John V. Orth and Paul Martin Newby, The North Carolina State Constitution, 2nd ed. (New York: Oxford University Press, 2013), 5.

Roger Ekirch, ‘Poor Carolina’: Politics and Society in Colonial North Carolina, 1729–1776 (Chapel Hill: University of North Carolina Press, 1981), 32.

Const. 1776, Art. XXXII provided: “That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State”.

Const. 1776, Arts. VII–VIII.

Const. 1776, Art. I.

Gerber, “Origins of an Independent Judiciary,” 1816.

Ibid., 1817.

Orth and Newby, North Carolina State Constitution, 11. Bayard was decided sixteen years before Marbury v. Madison (1803), and was cited by Chief Justice John Marshall in Marbury. Price, “There Ought to Be a Bill of Rights,” 435.

This declaration of state sovereignty, taken verbatim from Maryland’s declaration of rights, was the culmination of efforts to assert the state’s rights as an independent entity. In 1775, the Third Provincial Congress required its members and all public officials to sign a “Test” denying the authority of Parliament to tax or “regulate the internal police” of the colonies. “Minutes of the Provincial Congress of North Carolina,” Saunders, Colonial Records, 10:171–172. After authorizing Continental Congress delegates to support independence, the Fourth Provincial Congress reserved “to this Colony the Sole, and Exclusive right of forming a Constitution and Laws for this Colony, and of appointing delegates from time to time…to meet the delegates of the other Colonies.” “Proceedings of the Fourth Provincial Congress, April 12, 1776,” in Saunders, Colonial Records, 10:512.

Similar to Va. Decl. 1776, sec. 4. This article likely served as an anti-corruption measure, directed at the use of public office for patronage purposes. It also implemented the directive in the Mecklenburg instructions: “you shall oppose everything that leans to aristocracy or power in the hands of the rich and chief men exercised to the oppression of the poor.” Saunders, Colonial Records, 10:870a. This antipathy towards an aristocratic power structure was consistent with North Carolina’s pre-Revolutionary experience. The province’s colonial legislature repeatedly refused to formally approve the Fundamental Constitutions (five versions were promulgated between 1669 and 1698), which attempted to establish a hereditary nobility. Lefler and Newsome, History of a Southern State, 39–40.

Similar to Va. Decl. 1776, sec. 6. Delegates did not specifically include a right of suffrage in the declaration, but included liberal voter qualifications in the frame of government (Decl. 1776, Arts. VII–IX).

The seventh, eighth, and ninth articles offered protections for those accused of crimes. The language of the seventh and ninth articles closely resembled that of the Virginia declaration’s eighth section. Jury trials in criminal cases had been a long-standing practice in North Carolina, guaranteed both in the instructions to the Lords Proprietors and by acts of the assembly. Other procedural protections had been enshrined in early law, such as “An Act to Direct the Method to be observed in the Examination & Commitment of Criminals” (1715), which specified that no person within the province could be imprisoned “until Examination thereof be first had before some Magistrate.” The Earliest Printed Laws Of North Carolina, 1669–1751, ed. John D. Cushing (Wilmington, DE: M. Glazier, 1977), 2:19. North Carolina’s requirement of indictment, presentment, or impeachment in Article VIII added substance and another layer of protection to an accused’s right to be informed of the accusation against him.

In the clause concerning punishments North Carolina followed Maryland’s lead by replacing the conjunctive “and” found in the English Bill of Rights (1689) with the disjunctive “or,” potentially broadening the protection offered by the clause. See Md. Decl. 1776, Art. XXII. The North Carolina Assembly had included “imposing excessive fines,” among the complaints listed in the articles of impeachment against Crown appointed Chief Justice William Smith in 1740. Gerber, “Origins of an Independent Judiciary,” 1797.

Similar to Va. Decl. 1776, sec. 10.

This article was likely inspired by the thirteenth article of Maryland’s declaration of rights, and a portion of Chapter 29 of the 1225 confirmation of Magna Carta which stated: “to no one will [we] refuse or delay right or justice.” By including this provision, the Fifth Provincial Congress implied a right to habeas corpus and enhanced the role of the judiciary in protecting the liberties of the people.

Similar to Va. Decl. 1776, sec. 12.

Similar to Pa. Decl. 1776, Art. II. Article XIX proclaimed the “unalienable” right of conscience. The framers disestablished the Church of England in the frame of government (Const. 1776, Art. XXXIV) and expanded their understanding of freedom of worship as freedom from compelled attendance or financial support of religion contrary to one’s beliefs.

Similar to Pa. Decl. 1776, Art. XIV. This was a call to recollect the “fundamental principles” of the natural rights republic. It was an aspirational provision not susceptible to legal enforcement, meant as a reminder and encouragement to citizens of their indispensable role in preserving liberty.

Nearly identical to Md. Decl. 1776, Art. XL. Hereditary privileges were not uncommon in colonial North Carolina, as the Fundamental Constitutions of Carolina conferred upon the proprietors the power to issue patents for titles. The commitment to equality that formed the underpinnings of the Declaration of Independence was inconsistent with privileges, and both North Carolina and Maryland took steps to make sure no further titles would be granted.

Consistent with the commitment to equality and popular sovereignty reflected in the Mecklenburg and Orange instructions, this article prohibited perpetuities and monopolies. Maryland’s declaration also contained a provision barring monopolies, reflecting the popular contemporary view that artificial barriers to equality should be eliminated. Md. Decl. 1776, Art. XXXIX; see Joshua C. Tate, “Perpetuities and the Genius of a Free State,” Vanderbilt Law Review 67, no. 6 (November 2014): 1823, 1831. Perpetuities were railed against by Blackstone, who argued that such devices made estates “incapable of answering those ends of social commerce, and providing for the sudden contingencies of private life, for which property was first established.” Ibid., 1832, quoting William Blackstone, Commentaries on the Laws of England (Oxford: Printed at the Clarendon Press, 1765–1769), 2:174. The framers may have had in mind the persistent instability of land ownership arising out of the mismanagement of a portion of state land owned by absentee English Lord Carteret, the Second Earl Granville (who had inherited the latter title through heredity), a mismanagement that led to the 1759 Enfield Riot and several subsequent episodes of civil unrest. Ibid., 1826–1829.

Much of the language contained in this article seems better suited to a property deed than a bill of rights; however, the delegates to the Fifth Provincial Congress believed that establishing the boundary line of their state’s territory was necessary to protect the collective property right of the people. Additionally, it expressed solicitude for the rights of Indian nations, and included a grandfather clause protecting property granted by English monarchs prior to independence.

Nearly identical to Pa. Const. 1776, sec. 28. Despite gaining an early reputation as a haven for debtors based upon a 1669 Albemarle County statute protecting new settlers from foreign creditors for a period of five years, North Carolina generally followed traditional English debtor-creditor law, including imprisonment for debt. This article provided relief from confinement for debtors who had not engaged in fraud and who had previously tendered all of their assets to satisfy their creditors. The article also provided a right of bail for all non-capital offenses.

Article XL encouraged settlement by easing the property restrictions on foreigners that had existed in English law, and by giving foreigners the same rights as native-born freemen after they took an oath of allegiance and had integrated into the community through a one-year residency requirement. It was likely inspired by section 42 of the 1776 Pennsylvania Constitution, which contained the same guarantees but with slightly more stringent requirements: Foreign settlers had to be “of good character,” and were required to reside in the state for two years before becoming eligible to run for legislative office.

Similar to Pa. Const. 1776, sec. 44. The drafters viewed public education as an indispensable prerequisite for successful self-government and for sustaining a moral, well-ordered community. This article provided for the establishment of public schools, and mandated that the public cover the cost of these schools—thus making education a communal responsibility. The government of North Carolina did not establish a public school fund until 1825. “Chapter One: The Beginning of North Carolina’s Public Schools & The Literary Fund,” North Carolina State Board of Education, accessed October 12, 2018, https://​stateboard.​ncpublicschools.​gov/​about-sbe/​history/​chapter-one.

Identical to Pa. Const. 1776, sec. 37. Entailment was the practice by which land could only be inherited or transferred to a lineal descendant, in perpetuity, so that wealth remained in a single family. John V. Orth, “North Carolina Constitutional History,” North Carolina Law Review 70, no. 6 (1992): 1767. The general assembly ended the practice in 1784, explaining that “entails of estates tend only to raise the wealth and importance of particular families and individuals, giving them an unequal and undue influence in a republic, and prove in manifold instances the source of great contention and injustice.” Act to Regulate the Descent of Real Estates, to do away Entails, to Make Provision for Widows, and Prevent Frauds in the Execution of Last Wills and Testaments, 1784, Ch. 22, sec. 5, in Clark, State Records, 24:574.

North Carolina followed Pennsylvania’s example by incorporating its declaration of rights into the frame of government.